Danielle McDevitt Versus Michael Salisbury

DANIELLE MCDEVITT NO. 22-C-534

VERSUS FIFTH CIRCUIT

MICHAEL SALISBURY COURT OF APPEAL

STATE OF LOUISIANA

January 10, 2023

Linda Wiseman
First Deputy Clerk

IN RE DANIELLE MCDEVITT

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NANCY A. MILLER,
DIVISION "I", NUMBER 776-634

Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Hans J. Liljeberg

PER CURIAM

WRIT GRANTED; JUDGMENT ON MOTION TO RECUSE
REVERSED; REMANDED WITH INSTRUCTIONS

Plaintiff/relator, Danielle McDevitt, seeks this court’s supervisory review of

the trial court’s September 21, 2022 judgment which denied her Motion to Recuse

the trial judge filed on September 19, 2022. The basis of the trial court’s denial

under La. C.C.P. art. 154 C was that “the Motion to Recuse provides no objective

facts demonstrating bias against the plaintiff or her attorney,” i.e., that the Motion to

Recuse fails to sets forth a ground for recusal under La. C.C.P. art. 151.

After a thorough review of the Motion to Recuse, the trial court’s Judgment

and Reasons signed on September 21, 2022, and the writ application, we find that

the Motion to Recuse states allegations under La. C.C.P. art. 151 A(4) (alleging

instances of bias or prejudice), and under La. C.C.P. art. 151 B (alleging instances

showing existence of a substantial and objective basis that would reasonably be

expected to prevent the judge from being fair and impartial). These allegations, if

proven and sufficient to show that the judge is not fair and impartial, could rebut the

presumption of impartiality and result in a recusal. Accordingly, we conclude that

the trial court erred in denying the Motion to Recuse, rather than making a written

request to the Supreme Court for the appointment of an ad hoc judge as provided in

La. C.C.P art. 155, as per La. C.C.P. art. 154 B.

For these reasons, we grant this writ application, reverse the trial court’s

judgment denying the Motion to Recuse, and remand this matter and order the trial

court to make a written request to the Supreme Court for the appointment of an ad

hoc judge as provided in La. C.C.P. art. 155, to hear the Motion to Recuse.

We express no opinion as to the merits of the Motion to Recuse.

Gretna, Louisiana, this 10th day of January, 2023.

SJW
JGG
HJL

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 01/10/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

22-C-534
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Nancy A. Miller (DISTRICT JUDGE)
Shaye R. Lirette (Relator)

MAILED
Michael Salisbury (Respondent)
In Proper Person
39 Emma Street
Binghamton, NY 13905

SENDER: COMPLETE THIS SECTION

• Complete Items 1, 2, and 3.
• Print your name and address on the reverse
so that we can nrtum the card to you.
• Attach this card to the back of the mallplece, C. Date of Delivery
or on the front if space pennits. ,_ t.\--"L)
1. Article A.ddl9ssed to: OYes
ONo

Michael Salisbury , In Proper Person
39 Emma Street SECLJR!T'
Binghamton, NY 13905
22-C-534 01-10-23
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